Entercom Loses Appeal in Seattle Indecency Case

No joy for Entercom station KNDD(FM) in Seattle; the FCC has said no to the station's appeal of a $12,000 fine for indecent material on the "Andy Savage Show" that aired over three days in 2001. Part of Entercom's case was built on arguments that non-sexual references to male genitalia are not indecent and that the commission's indecency definition is unconstitutional. The FCC upheld the fine. Commissioner Copps dissented, calling the penalty inadequate and repeating his argument that such fines could be absorbed by broadcasters as a "cost of doing business." Commissioner Martin reiterated his belief that fines should be issued "per utterance." In the broadcasts in question, the station's morning show personalities discussed whether penises could be used to lift or pull objects; the hosts decided to give concert tickets to listeners who agreed to appear in the studio to do so. Part of the legal discussion focused on Entercom's argument that non-sexual references to male genitalia do not meet the threshold for indecency. The commission disagreed, stating that "material that, in context, depicts or describes sexual organs is subject to the indecency definition, regardless of whether sexual activity is also depicted or described." A transcript of the shows and the FCC's findings in upholding the fine can be seen at http://hraunfoss.fcc.gov/edocs_public/attachmatch/FCC-04-89A1.doc